Abdul Nafi vs Kadeeja
2024 Latest Caselaw 30364 Ker

Kerala High Court

Abdul Nafi vs Kadeeja on 25 October, 2024

Author: Devan Ramachandran

Bench: Devan Ramachandran

                                             2024:KER:79554
          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

        THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

                              &

         THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA

FRIDAY, THE 25TH DAY OF OCTOBER 2024 / 3RD KARTHIKA, 1946

                   OP (FC) NO. 637 OF 2024

        OP(OTHERS)869/2023, FAMILY COURT, PARAVOOR

PETITIONERS:

    1      ABDUL NAFI, AGED 29 YEARS,
           S/O. LATE. ABDUL MAJEED,
           RESIDING AT ARAVINDHAM, PUNCHIJI JUNCTION,
           NEAR OXFORD SCHOOL, UMAYANALLOOR P.O.,
           THAZHUTHALA VILLAGE, KOLLAM-,
           REPRESENTED BY HIS POWER OF ATTORNEY HOLDER
           MR. SAINULABDEEN, AGED 64 YEARS,
           S/O. SHAMSUDEEN, RESIDING AT THARAYIL VEEDU,
           ROYAL NAGAR-112, MANGAD, KILIKOLLOOR P.O.,
           KOLLAM, PIN - 691004.

    2      NAFEESATH, AGED 51 YEARS,
           W/O. LATE ABDUL MAJEED,
           RESIDING AT ARAVINDHAM,
           PUNCHIJI JUNCTION, NEAR OXFORD SCHOOL,
           UMAYANALLOOR P.O., THAZHUTHALA VILLAGE,
           KOLLAM, PIN - 691020.

    3      AISHA ABDUL MAJEED, AGED 25 YEARS,
           D/O. NAFEESATH, RESIDING AT ARAVINDHAM,
           PUNCHIRI JUNCTION, NEAR OXFORD SCHOOL,
           UMAYANALLOR.P.O., THAZHUTHALA VILLAGE,
           KOLLAM, PIN - 691020.
                                           2024:KER:79554
OP (FC) NO. 637 OF 2024

                          -2-



         BY ADVS.
         S.SREEKUMAR (KOLLAM)
         NAMITHA RAJESH
         NITHYA V.D.



RESPONDENT:

         KADEEJA, AGED 27 YEARS
         W/O. ABDUL NAFI, KADHEEJA LAND,
         LAINA STUDIO LINE, NEAR RAILWAY STATION,
         VARKALA, THIRUVANANTHAPURAM.
         NOW RESIDING AT ARAVINDHAM, PUNCHIRI JUNCTION,
         NEAR OXFORD SCHOOL, UMAYANALLOR P.O.,
         THAZHUTHALA VILLAGE, KOLLAM, PIN - 691020.

         BY ADVS.
         BIJU C ABRAHAM
         BASIL MATHEW(K/000588/2020)



     THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION
ON 25.10.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
                                                    2024:KER:79554
OP (FC) NO. 637 OF 2024

                                   -3-


                             JUDGMENT

Devan Ramachandran, J.

The petitioners allege that the learned

Family Court, Paravoor, has ordered the handing

over of all the gold ornaments - that were found

in a bank locker in the joint names of the

parties - to the respondent, without affording

them necessary opportunity of establishing his

case.

2. Sri.S.Sreekumar (Kollam) - learned

counsel for the petitioners, contended that,

even though the learned Family Court has passed

an order on the afore lines, certified copy of

the same has never been issued to his clients;

but that this is available in the certified copy

of the "B Diary" as item No.42, dated

01.10.2024.

2024:KER:79554 OP (FC) NO. 637 OF 2024

3. Sri.S.Sreekumar explained that the

Original Petition was filed by the respondent -

wife, seeking return of gold ornaments and

making certain other claims; and that his

clients had filed objections - namely Ext.P3, in

which, they admitted that all the gold ornaments

of the respondent are available in the bank

locker, but without conceding that every article

therein belongs to her. He asserted that this is

because, as evident from the objections filed to

the application from which the impugned order

has arisen, namely Ext.P7, his clients have made

it unequivocally clear that all the gold

ornaments in the bank locker do not belong to

the respondent and that some of it belongs to

them. He, therefore, prayed that the order under

challenge be set aside; conceding that, in fact, 2024:KER:79554 OP (FC) NO. 637 OF 2024

the only prayer in this Original Petition is

that the certified copy of the order dated

01.10.2024 be issued to the petitioners.

4. Sri.Biju C.Abraham - learned

counsel for the respondent, refuted the afore

submissions, saying that the facts involved in

this case are not as presented by the

petitioners. He pointed out that the petitioners

have unequivocally admitted in Ext.P3 objections

that only the gold ornaments of his client are

available in the bank locker, which is in the

joint name of the parties; and therefore, that

the learned Court was without error in having

appointed an Advocate Commissioner to open it

and prepare an inventory of the articles in it.

He showed us that Ext.P8 is the said inventory,

which was settled as early as on 06.09.2024; but 2024:KER:79554 OP (FC) NO. 637 OF 2024

that, thereafter, a submission was made at the

Bar by the learned counsel for the petitioners

herein that some of the said articles belong to

them. He added that the learned Court,

thereupon, directed the learned Advocate

Commissioner to again open the locker and take

photographs of the ornaments therein; and that

the order dated 01.10.2024 was thereafter

issued, after comparing such photographs with

the marriage album, to thus find that all the

ornaments belong to his client. He argued that,

therefore, there can be no error attributed by

the petitioners to the order dated 01.10.2024;

however, conceding that a certified copy of the

said order perhaps has not been issued, but is

only part of the "B Diary", namely Ext.P14.

5. We must record that, when this 2024:KER:79554 OP (FC) NO. 637 OF 2024

matter was considered by us on an earlier date,

we asked for a report to be obtained from the

learned Family Court, if the certified copy of

the order dated 01.10.2024 had been issued. The

office of the learned Family Court responded,

saying that "copy application for order dated

01.10.2024, which forms a part of B Diary is

compiled on 19.10.2024." (sic)

6. We, therefore, are of the opinion

that the petitioners are right in asserting that

a separate order has not been issued on

01.10.2024, but has been recorded as a part of

the "B Diary".

7. Obviously, therefore, we will have

to decide now whether the order in question

answers the parameters of law.

8. The specific argument of the 2024:KER:79554 OP (FC) NO. 637 OF 2024

learned counsel for the respondent is that there

is an admission by the petitioners that the

locker contains only her ornaments and nothing

else. However, the contra - argument is that

paragraph 5 of Ext.P3 does not say so, but only

that the gold ornaments of the wife are

available in the bank locker; which is not to

mean that nothing else is available therein.

9. In fact, as correctly argued by

Sri.S.Sreekumar - learned counsel for the

petitioners, in the objections filed by his

clients to I.A.No.4/2024 - filed by the

respondent to direct the Advocate Commissioner

to prepare an inventory of the gold ornaments -

namely Ext.P7, an assertion is seen made to the

effect that all the articles found by the

learned Advocate Commissioner do not belong to 2024:KER:79554 OP (FC) NO. 637 OF 2024

the respondent. However, there is nothing else

in the said objections as to the exact ornaments

that are being claimed by the petitioners.

10. In the afore scenario, it is

luculent that an attempt is now being made by

the petitioners to point out and claim some of

the gold ornaments, as identified by the

Advocate Commissioner and which are part of

Ext.P8.

11. Pertinently, Sri.S.Sreekumar -

learned counsel for the petitioners, concedes

that his clients do not have a case that the

inventory mentioned in Ext.P8 is in error. His

only argument - impelled on the edifice of the

additional affidavit filed by his client, dated

24.10.2024 - is that the ornaments mentioned

therein belongs to the petitioners. The 2024:KER:79554 OP (FC) NO. 637 OF 2024

averments relevant are available in paragraph

No.4 of the above said affidavit, which is as

follows:

"Out of these gold ornaments three bangles are seen in the locker and described as item No.2, 3, and 4 in the commission report. The necklace is also in the locker which is scheduled as item No.13 in the commission report. The right also seen in the locker and described as item No.23 in the commission report. But the bracelet and the diamond ornaments are not seen in the locker. After the marriage function the 2nd petitioner has adorned a gold bangle having 1.5 sovereigns to the respondent. This gold bangle is also in the custody of the respondent and not placed in the locker. The item No. 22 and 23 in the commission report was not mentioned in the scheduled of the Exhibit-P2 original petition. But after the commission report the respondent filed additional affidavit stating that the item No. 22 and 23 also 2024:KER:79554 OP (FC) NO. 637 OF 2024

belong to the respondent."

12. It is thus ineluctable that, as

matters now stand, the petitioners can, at the

best, stake claim or raise a dispute only as

against the afore articles, and not the rest. In

fact, this is unequivocally conceded by

Sri.S.Sreekumar, their learned counsel; and he

affirmed that all other ornaments can be

released to the respondent.

In the afore circumstances, with the

consent of both sides, we order this Original

Petition in the following manner:

(a) The order dated 01.10.2024 is

and 23 of Ext.P8 inventory.

(b) As regards the above said articles,

the parties will be given necessary 2024:KER:79554 OP (FC) NO. 637 OF 2024

opportunities to establish their ownership and

title on it as per law, during trial or earlier,

as the learned Court may deem fit.

Sd/-

DEVAN RAMACHANDRAN JUDGE

Sd/-

                                  M.B.SNEHALATHA
akv                                    JUDGE
                                              2024:KER:79554
OP (FC) NO. 637 OF 2024





              APPENDIX OF OP (FC) 637/2024

PETITIONER EXHIBITS

EXHIBIT P1        THE TRUE ATTESTED COPY OF THE POWER OF

ATTORNEY OF THE 1ST PETITIONER

EXHIBIT P2 THE TRUE COPY OF THE ORIGINAL PETITION IN OP (OTHERS) 869/2023 PENDING BEFORE THE FAMILY COURT PARAVOOR

EXHIBIT P3 THE TRUE COPY OF THE OBJECTION FILED BY THE PEITTIONERS IN THE EXHIBIT- P2 ORIGINAL PETITION

EXHIBIT P4 THE TRUE COPY OF THE PETITION IN IA NO. 1/2022 IN OP 389/2022 OF THE FAMILY COURT, KOLLAM AND WHICH WAS RENUMBERED AS IA 1/2023 IN OP (OTHERS)

EXHIBIT P5 THE TRUE COPY OF THE ORDER IN IA NO.

1/2022 IN OP (OTHERS) 389/2022 OF THE FAMILY COURT, KOLLAM DATED 20.08.2022

EXHIBIT P6 THE TRUE COPY OF THE COMMISSION APPLICATION IN IA 4/2024 OF THE FAMILY COURT, PARAVOOR

EXHIBIT P7 THE TRUE COPY OF THE OBJECTION FILED AGAINST THE COMMISSION APPLICATION BY THE PETITIONERS' IN IA 4/2024 OF THE FAMILY COURT, PARAVOOR

EXHIBIT P8 THE TRUE COPY OF THE COMMISSION REPORT FILED BY THE ADVOCATE COMMISSIONER IN 2024:KER:79554 OP (FC) NO. 637 OF 2024

IA 4/2024 OF THE FAMILY COURT, PARAVOOR DATED 9.9.2024

EXHIBIT P9 THE TRUE COPY OF THE PETITION IN IA 6/2024 IN OP (OTHERS) NO. 869 /2023 BEFORE THE FMILY COURT, PARAVOOR TO KEEP THE ORDER IN ABEYANCE IN I.A.NO. 4 OF 2024

EXHIBIT P10 TRUE COPY OF THE IA NO. 5/2024 IN OP (OTHERS) NO. 869 /2023 BEFORE THE FMILY COURT, PARAVOOR FOR REVIEWING

EXHIBIT P11 TRUE COPY OF THE IA NO. 3/2023 IN OP (OTHERS) NO. 869 /2023 BEFORE THE FMILY COURT, PARAVOOR FOR SANCTIONING THE PETITIONERS TO FILE EXT.P3 OBJECTION

EXHIBIT P12 TRUE COPY OF THE IA NO. 2/2023 IS FOR ACCEPTING THE POWER OF ATTORNEY HOLDER OF THE 1ST PETITIONER

EXHIBIT P13 TRUE COPY OF THE E-COURT STATUS OF THE FAMILY COURT, PARAVOOR IN OP (OTHERS)

EXHIBIT P14 THE TRUE ATTESTED COPY OF THE COURT PROCEEDINGS IN OP (OTH) 869/2023